Union Rights Breach Led to HRA Firing;

Judge Orders New Hearing
Union Rights Breach Led to HRA Firing


A Manhattan judge has granted a new hearing to a city employee who was fired for causing another worker to become ill from inhaling ammonia fumes because the arbitrator who imposed that penalty did so after considering a secret disciplinary memo that violated the worker's union rights.

Supreme Court Justice Alice Schlesinger overturned the ruling of an arbitrator who she said gave "a completely irrational construction" of the union's contract. Felipe Rivera, who was employed by the Human Resources Administration as a Community Assistant for eight years until he was fired on Apr. 30, 2005, will receive a new hearing with a different arbitrator.

No Prior Discipline

Mr. Rivera is a member of Local 371 of District Council 37 and had no prior work performance complaints lodged against him. He was disciplined after an incident in the staff lounge at the domestic-violence facility New Day, where he worked.

A Motor Vehicle Operator named Kevin Pope was using the bathroom inside the lounge when Mr. Rivera entered the lounge. He spoke with another Community Assistant, Hadiza Smith, about how to get rid of a foul odor that was coming from the bathroom.

Mr. Rivera then poured some ammonia on the floor near the bathroom door and turned on a fan facing the bathroom, even though he was aware that somebody was inside. Mr. Pope came out of the bathroom shortly afterwards feeling sick and with his eyes tearing.

In upholding HRA's decision to fire him, arbitrator Randi E. Lowitt ruled that Mr. Rivera had "demonstrated extremely poor judgment" and stated that even if he didn't intend to cause Mr. Pope any harm, his actions were "irresponsible and inexcusable."

Cites Prejudicial Memo

Judge Schlesinger wrote that she overturned the ruling because the arbitrator had exceeded her authority by allowing a memorandum critical of Mr. Rivera that was written in June 2000 to be admitted into evidence.

Under the union contract, an employee must be told about any negative assessment placed in his or her file and be given the chance to respond to it in writing. Because Mr. Rivera was never told about the memo, and therefore had no knowledge of its content and no chance to respond to it, Judge Schlesinger held that its use in the case was prejudicial.